Tuesday, February 26, 2013

Forensic psychologists and the machinery of execution

Andre Thomas, Texas

When
Andre Thomas killed his wife and children, he was careful to use three
different knives so that "the blood from each body would not
cross-contaminate, thereby ensuring that the demons inside each of them
would die," as Marc Bookman explained it in an eloquent Mother Jones report.
Then, he cut out their hearts and went to the police station to
confess. While awaiting trial, he cut out one of his eyes. Later,
he cut out the other, eating it in order to keep the government from
using it to spy on his mind.

In response to changing social mores and international condemnation (only a handful of countries remains in the business
of killing their wayward citizens), the U.S. Supreme Court in 2002
exempted the mentally retarded from execution, following up three years
later by exempting juveniles. With this narrowing of the contours of
capital punishment, the question of how mentally impaired one must be to
avoid execution is increasingly in the forefront. That makes severe
mental illness "the next frontier" of capital jurisprudence, in the words of psychology-law scholar Bruce Winick.

How insane?

Executing
the floridly insane constitutes cruel and unusual punishment, barred
under the Eighth Amendment of the U.S. Constitution. However, the "Ford standard"
for competency to be executed is very low; a condemned person need
merely understand the link between his crime and his punishment. In
Thomas's case, the government insists that he is not insane enough to be
spared, despite chronic auditory hallucinations, delusions, and treatment for paranoid schizophrenia.

Making
this case especially ironic is that Thomas has become a poster child
for the need for new laws allowing preemptive detention of people whose
mental illness makes them dangerous. "At least twice in the three weeks
before the crime, Thomas had sought mental health treatment," reports the Texas Tribune
in a series on mental health and the criminal justice system. "On two
occasions, staff members at the medical facilities were so worried that
his psychosis made him a threat to himself or others that they sought
emergency detention warrants for him. Despite talk of suicide and
bizarre biblical delusions, he was not detained for treatment."

John Errol Ferguson, Florida

With the U.S. Supreme Court declining to draw a bright line,
the question of exactly how rational a condemned prisoner's
understanding must be in order for an execution to proceed has become
central to legal appeals by psychotic prisoners like Thomas. Another
current example is the case of John Errol Ferguson,
a mass killer in Florida whose October execution was stayed due to
concerns about his mental state. Ferguson's long history of paranoid
schizophrenia is undisputed; the question is whether his grandiose and
religious delusions interfere with his understanding that the state is
going to kill him for his crimes, and that when he dies he will be,
well, dead.

Ferguson's lawyers
have argued that the killer lacks rational understanding, because he
believes he is "the Prince of God" and will be returned to Earth
post-execution to save the world from a communist plot. The state of
Florida counters that all that is required to be competent for execution
is that a prisoner have an "awareness" that he is set to be executed
for crimes he committed. To resolve the dispute, Florida's governor
appointed a panel of experts to collectively evaluate Ferguson; a lower
court also heard extensive testimony
from prison personnel and other mental health experts, including
malingering expert Richard Rogers, who administered a large battery of
malingering tests and opined that Ferguson was not faking mental
illness. Ultimately, the circuit court found little to distinguish Ferguson's belief system from typical religious ideation:

"There
is no evidence in the record that Ferguson’s belief as to his role in
the world and what may happen to him in the afterlife is so
significantly different from beliefs other Christians may hold so as to
consider it a sign of insanity."

How intellectually impaired?

Meanwhile,
with the categorical exemption of prisoners with mental retardation
from the death row rosters, courts around the nation are seeing pitched
battles over intelligence scores that can make the difference between
life and death. On each side of the IQ Wars in so-called Atkins hearings (named for the 2002 U.S. Supreme Court decision
barring execution of the developmentally disabled) are
neuropsychologists whose testimony delves into the technicalitiesof
margins of error, practice effects, and the now-familiar Flynn Effect.
This latter phenomenon of IQ inflation, in which scores on any given IQ
test rise by about three points per decade, creates a situation in
which a person on the cusp of mental retardation might score over 70 --
making him eligible for execution -- on an older IQ test but not on a
newer one.

Ronell Wilson, New York

Take the case of Ronell
Wilson in New York, who murdered two undercover police officers. His
nine-day Atkins hearing earlier this winter featured seven experts
dissecting nine IQ scores obtained over a 13-year period. In its 55-page opinion,
the U.S. District Court spent many pages explaining why a 95 percent
confidence interval (a range of two Standard Errors of Measure on either
side of a score, something commonly reported in clinical practice) was
inappropriate in Atkins claims, because it could place people into the
range of mental retardation even if they score well above 70 on IQ
tests. The court instead opted for a 66 percent confidence level. Either
way, it was all much ado about nothing: "Even after taking into account
the possibility of measurement error, the Flynn Effect, and (to a
limited extent) the practice effect," Wilson's IQ scores ranging from 70
to 84 were "simply too high to qualify him under the definition of
significantly subaverage intellectual functioning."

As Peter Aldhous reports in the New Scientist,
the outcomes of these IQ battles vary widely by jurisdiction (and
quality of lawyering, I would imagine). Overall, 38 percent of Atkins
claims are successful, according to a study at Cornell Law School, but the success rate is 81 percent in North Carolina compared with only 12 percent in Alabama. A convicted killer named Earl Davis
with IQ scores of 75, 76, 65 and 70 was spared execution on the basis
of the Flynn effect. But that same effect was not persuasive in the case
of Kevin Green of Virginia, whose mean IQ score was actually three points lower than Davis's (71, 55, 74 and 74); Green was executed in 2008.

Texas,
meanwhile, which has carried out more than one-third of all executions
in the United States since capital punishment was reinstated, has come
up with its own unique standard of mental retardation, based on the
character Lennie from John Steinbeck's Of Mice and Men. Wrote the Texas Court of Criminal Appeals in a 2004 explication
of the level of mental retardation necessary to avoid the death
penalty:

"Texas citizens might agree that Steinbeck's Lennie should, by
virtue of his lack of reasoning ability and adaptive skills, be exempt.
But, does a consensus of Texas citizens agree that all persons who might
legitimately qualify for assistance under the social services
definition of mental retardation be exempt from an otherwise
constitutional penalty?"

A technical spectacle

Whereas
in the real world intelligence and insanity are continuous variables,
the law chooses to treat them as dichotomous. Psychologists assist in
promoting this legal fiction, helping to sort the condemned into
discreet categories of sane or insane, mentally retarded or able-minded.
Although the tests we used are supposedly objective, data in this
highly polarized area can be skewed to favor one outcome or the other.
Neuropsychology experts hired by the defense may focus on the Flynn
Effect and argue for large confidence bands around IQ scores. Meanwhile,
at least one "go-to" psychologist for prosecutors in Texas took a decidedly
different approach, systematically skewing data so that more marginally
functioning men were made eligible for execution.

George Denkowski
developed his own method of evaluating Atkins claims, based on his idea
that individuals on Death Row may do poorly on traditional tests
because of cultural and social factors rather than lack of intellectual
ability. So he discounted evidence that defendants, for example, could
not count money or take care of their basic hygiene, reasoning that
maybe they just were not taught those skills. With an inmate named Daniel Plata,
for example, Denkowski bumped up his IQ score from 70 to 77 and his
score on a test of adaptive functioning from 61 to 71. He even published an article in the American Journal of Forensic Psychologyin 2008 in which he explained this system of clinical overrides. Complaints by
fellow psychologists that his technique had no scientific basis
eventually led the Texas State Board of Examiners of Psychologists to issue a reprimand and to bar him from conducting future intellectual disability evaluations in criminal cases. He admitted no legal wrongdoing but agreed to a $5,500 fine -- a pretty lightweight penalty considering that two of the 29 condemned men he evaluated were executed.

Unethical
as his method was, it did give attention to the issues of race and
class, which may hide in plain sight when appeals revolve around the
technical interpretations of psychological test data. It is
Constitutionally impermissible for race to be considered in capital
cases. But it stretches credulity to believe race played no role, for example, in the case of
eye-plucking Andre Thomas: Thomas is African American, his late wife
was white, all of the jurors were white, and four jurors had
acknowledged opposition to interracial marriages. In the very last
sentence of his closing argument for the death penalty, reported
Bookman in the Mother Jones piece, the prosecutor asked jurors whether
they would be willing to risk Thomas "asking your daughter out, or your
granddaughter out?" This in the town of Sherman, which burned its entire Black district to the ground in 1930 during a race riot triggered by -- what else -- rumors that a Black man had raped a white woman.

Trauma as common denominator

Setting
aside the technical criteria for insanity and mental retardation, if
one could boil capital cases down to one common denominator, it would be
trauma. In my experiences working in the capital trenches, I have found
that most Death Row denizens survived horrific childhoods dominated by physical, sexual and emotional torture and neglect, combined with
multi-generational patterns of mental illness and violence, all overlaid
with hard-core substance abuse.

The Mother Jones report on Andre Thomas is HERE; the audio podcast, read by M*A*S*H star Mike Farrell, can be downloaded or listened to HERE. My 2009 posts on the Andre Thomas case are HERE and HERE.My prior posts on the Ford standard of competency and the U.S. Supreme Court's decision in the case of Leon Panetti (with links to court rulings and lots of related resources) are HERE,HERE and HERE. The U.S. Supreme Court's 2007 opinion in Panetti v. Quarterman is HERE. A 28-minute educational video, "Executing the Insane: The Case of Scott Panetti," is available HERE.

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Karen Franklin, Ph.D. is a forensic psychologist and adjunct professor at Alliant University in Northern California. She is a former criminal investigator and legal affairs reporter. This blog features news and commentary pertaining to forensic psychology, criminology, and psychology-law. If you find it useful, you may subscribe to the newsletter (above). See Dr. Franklin's website for more information.

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